Trafficking victim conclusive grounds decision admissible evidence at trial
21 December 2020
DPP v M [2020] EWHC 3422 (Admin) (15 December 2020) — judgment here
On 15 December 2020, the High Court ruled that a positive conclusive grounds decisions by the Single Competent Authority (“SCA”) that a defendant was a victim of trafficking and modern slavery was admissible evidence in a criminal trial where the defendant raises the defence in s.45 Modern Slavery Act 2015 (“MSA 2015”) that the act took place by reason of slavery or exploitation.
BACKGROUND
M was a 15-year-old boy with no history of offending. On 16 May 2019, he was at a KFC in Tooting, an area of London to which he had he had no connection, along with two other boys (MP and KM) who were known by police to be gang members and habitual knife carriers. When the group were searched by police officers, M had 5 wraps of cocaine, 2 wraps of diamorphine (heroin) and a hunting knife in his possession.
On 23 May 2019, M was referred to the National Referral Mechanism (“NRM”) by Lewisham Children’s Social Care. On 21 August 2019 the Single Competent Authority (“SCA”) made a positive conclusive grounds decision that, on a balance of probabilities, M had been recruited, harboured and transported for the purposes of criminal exploitation.
The Prosecution agreed with the facts upon which the decision was based, but did not agree with the conclusive grounds decision itself.
On 4 December 2019, M was tried at Wimbledon Youth Court for possession of a bladed article, possession of a Class A drug (heroin) and possession of a Class A drug (cocaine).
M relied on the two-limb statutory defence in s.45 MSA 2015, that
- he was a child who had done the act as a direct consequence of having been a victim of slavery or relevant exploitation; and
- a reasonable person in the same situation as the person and having his relevant characteristics would do that act.
The s.45 defence places an evidential burden on the Defendant. M did not give evidence in support of this defence and had made a ‘no comment’ interview at the police station. The District Judge nevertheless acquitted M, finding that the evidence adduced (the full minute of the SCA decision, the evidence of the police officers and the admitted facts) was sufficient to satisfy the evidential burden.
THE APPEAL
The DPP appealed to the High Court by way of case stated arguing that, in the circumstances of this case, where the Respondent did not give evidence and did not provide an explanation in interview, the requisite evidential burden in the s.45 defence had not been discharged. The DPP argued that
- for the purposes of a criminal trial, the SCA decision was inadmissible non-expert opinion evidence and hearsay; and
- in any event the judge was wrong to find that the evidence before her was sufficient to discharge the evidential burden which lay on M to establish the statutory defence.
The High Court reviewed the legislative framework and a number of tangentially relevant authorities. However, there was hitherto no authoritative guidance as to the admissibility of SCA conclusive grounds decisions in criminal trials. The court considered general principles on expert evidence and hearsay evidence and concluded at [53] that
We consider that the District Judge was entitled to receive and admit the findings of the SCA as evidence that M had been recruited and harboured such that he had been trafficked within the meaning of the 2015 Act and that he was a victim of criminal exploitation. The SCA decision maker had expertise in relation to those issues. The judge was entitled to consider the findings and assess the extent to which they were supported by evidence. Insofar as appropriate, she would have been able to reduce the weight she gave to the findings. However, that is a question of weight rather than admissibility. In fact, the SCA decision was based on a proper evidential foundation and it was not contradicted by other material available to the judge.
Having ruled the decision itself admissible, the Court turned its attention from [56] onwards to whether the evidential burden had been discharged in respect of both limbs of the s.45 defence.
On the facts of this case, there was relevant direct evidence available to the District Judge to assist in determining that was a victim of exploitation and that his offending was a direct consequence of that status. As summarised at [58]
M was a missing child; he was in an area with which he had no connection; he had no previous convictions; he was with two boys with a significant criminal history involving drugs and knives. This was not hearsay evidence. The hearsay evidence described M’s troubled background by reference to local authority and police records. The records were admissible under section 117 of the Criminal Justice Act 2003.
As regards what a reasonable person would have done, considering the Defendant’s age in isolation would not have been sufficient. However, in this case, although not set out in the case stated, the District Judge considered the entirety of the evidence of M’s background [61]. The Defendant had therefore discharged the burden and was properly acquitted.
COMMENTARY
The ruling sets an important precedent. For criminal practitioners, it brings clarity to the hitherto uncertain issue of the admissibility at trial of a potentially key piece of evidence in s.45 cases. As Chloe Hartnell, the criminal defence solicitor instructed by M, explained in a statement following the ruling,
Courts have agreed that there needs to be forensic examination of all the evidence as to whether the defendant is a victim of trafficking and whether there is a nexus with the offence. Depriving the court of the SCA decision would have severely reduced the evidence on which to make this decision.
SCA decisions are not determinative and the ruling does not mean that a positive conclusive grounds decision will automatically lead to acquittal in all cases; both limbs of the defence remain issues to be decided by the tribunal of fact. The weight to be afforded to the SCA decision will depend on the circumstances in each individual case and will need to be considered alongside all the evidence.
Counsel for the Defendant also welcomed the judgment stating
This decision is a major step forward for those defendants, often vulnerable children, who are victims of trafficking, modern slavery and forced criminality. Defendants will be able to point to the decision made by the Single Competent Authority and the rationale behind it when asking the court to acquit them in accordance with the statutory defence in the MSA 2015.
FURTHER READING
The UK Human Rights Blog has discussed the issue of human trafficking in a recent piece by the same author on another criminal law decision here, and also in an extended analysis article from 2018 on whether the system for combatting it is fit for purposes here.
Samuel March is a pupil at 5 Paper Buildings. He tweets at @Sam_Oscar_March
